STATE OF BIHAR Vs. JAMUNU SINGH

JUDGEMENT

(1.) This is defendants' application against order dated 17.1.1979 holding that the application filed by the plaintiff under Ss. 8 and 20 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act') was, maintainable and also directing the parties to appoint an Arbitrator. The court further ordered that if the parties did not concur in appointing an Arbitrator, the court would appoint a sole Arbitrator to decide the claim of the parties. Whether in the absence of any clause about the reference of the dispute and the settlement thereof by the Arbitrator, the court, in passing the aforesaid order, committed jurisdictional error -is the solitary question to be decided in the instant case.

(2.) The plaintiff/opposite party filed the application under Ss. 8 and 20 of the Act against the petitioners and prayed for appointment of an Arbitrator and for the settlement of the dispute. This was registered as T.S. Case No. 129/78. Admittedly, in pursuance of a tender called for by the petitioners for the supply of three lacs Cft. of Stone Boulders at Sasamosa, Jalalpur and Harapura railway station, the plaintiff/opposite party submitted his tender which was accepted by the petitioners and, accordingly, a contract agreement No. 2H2 -06 -66 -67 was entered into between the parties after depositing the earnest money. The plaintiff/opp. party further averred in the plaint that the said agreement was arbitrarily prepared against the terms and conditions as were in the offer. The plaintiff/opp. party claimed that he was legally entitled for the payment of the supply of Boulders on Wagon measurement and it was wrong on the part of the petitioners to make payment according to stock measurement at the railway sidings. The plaintiff/opp. party served notice under Sec. 80 of the Code of Civil Procedure on the petitioners for the recovery of Rs. 68,176.07. According to the plaintiff/opp. party he was forced to withdraw the notice and was pursuaded to apply for the settlement of the dispute by arbitration though there was no such clause in the agreement. Admittedly, petitioner No. 3, (the Superintending Engineer, Saran Canal Gandak Project Circle, Bihar) agreed to settle the claim of the plaintiff/opp. party -but, according to the plaintiff he, without hearing the plaintiff, have his decision ex -parte and awarded Rs. 21,060/ - to be paid to the plaintiff/opp, party. However, according to the plaintiff, the Accounts Officer (petitioner No. 5) allowed payment of Rs. 14,108/ - only and detained the rest.

(3.) The petitioners filed a rejoinder to the aforesaid application filed by the plaintiff/opp. party and contended that, in the facts and circumstances of the case, the application under Ss. 8 and 20 of the Act was not maintainable and, in that view of the matter, the suit was not maintainable. The petitioners further submitted that the only clause in the contract agreement which could be referred to was clause 14 which stipulated that the decision of the Superintending Engineer, for the time being, shall be final, binding and conclusive on all questions relating to the meaning of specification of materials to be collected. In other words, there was no clause about the reference of the dispute and the settlement thereof by an Arbitrator. The petitioners' further objection was that the matter in dispute had already been decided by petitioner No. 3 (the Superintending Engineer) on the request in writing by the plaintiff/opp. party himself, which was binding upon the parties.